Excerpt:.....being said to have been committed by him while acting or purporting to act in the discharge of his official duty, the court should not have taken cognizance of the said offences without the previous sanction of the governor .general in council under section 197, criminal p. bamaseshan urges that there is an element of the official duty being done by the petitioner when he directed the driver to take the lorry to private contractors like p. secondly, according to him drivers like p. 6 and 2 is clearly to the effect that they would not have acted as they did but for the belief instilled in them by the petitioner that he was acting in the discharge of his official duties. 88, 36 and 87 of the report where the learned judge was discussing the question as regards the applicability of section..........of his official duties can be deemed to do the same in discharge or execution of his official duty or purporting to do in the discharge or execution of his official duty. it is not pretended or even remotely suggested that a public servant like the petitioner can use the property entrusted to him for his own purposes. if he does any act in violation of the terms of the entrustment, it is a negation of the execution of public duty. i am therefore satisfied that the arguments advanced by the petitioner's counsel are unacceptable, and that the provisions of section 270, government of india act or section 197, criminal p. 0., are not applicable to the facts of the present case. i wish it to be distinctly understood that i do not intend to express any opinion whatever about the merits of the.....

Judgment:ORDER

Govinda Menon, J.

1. This is an application to quash the four charges framed against the petitioner, by the Additional First Class Magistrate of Banipet in c. C. No. 231 of 1947 on his file, The first of these charges relates to an offence under Section 120B, Penal Code, in that the petitioner, between 1st May 1946 and 1st June 1946 at Arkonam, with a person who is accused 2 in the Court below, agreed to do an illegal act, viz., fairing out the military vehicles entrusted to the petitioner for allotting to the Sub-Divisional Officers for military works, to p. w. 2, a civilian building contractor, and that the same act, viz., the hiring out of the military lorries to the private contractor, having been done in pursuance to an illegal agreement the petitioner hereby committed an offence of criminal conspiracy. The next three charges relate to cases of criminal breach of trust by a public servant, viz., the petitioner, in that he as Sub-Divisionl Officer, M. E. S., Arkonam, being entrusted with military lorries for allotment to other Sub-Divisional Officers for military work, used those military lorries dishonestly in contravention of such entrustment and thereby committed criminal breach of trust on three occasions.

2. The contention raised in this application is that the charges should be quashed for the reason that the Magistrate bad no jurisdiction to entertain the proceedings before him on the ground that there was no sanction as contem plated by Section 270 (l), Government of India Act, 19SS, and also that the petitioner being a public servant under a contract of service with the Governor-General in Council and not removable from his office save by or with the sanction of the said authority, and the offences alleged against him being said to have been committed by him while acting or purporting to act in the discharge of his official duty, the Court should not have taken cognizance of the said offences without the previous sanction of the Governor .General in Council under Section 197, Criminal P. C. Both these objections converge to the same point, viz. whether the petitioner in committing the alleged acts which form the subject of the charges was doing an act or purporting to do an act in execution of his duty as a servant of the Crown is India.

3. According to the prosecution, the petitioner who was employed as a Sub Divisional Officer in the Transport Garrison Engineering Office at Arkonam was entrusted with the duty of allotting trucks to the various military departments for their use. These trucks belong to a company known as the General Provisions Transport Company and were at the disposal of of the military authorities to be used for military purposes. According to the evidence now let in, it is seen that the driver of each vehicle takes it to the petitioner every day for the purpose of getting the work allotted and when it is so taken, it is the duty of the petitioner to indicate in the duty slip of the driver which place he was to go, Such allotment should be only for military purposes and not for anything else. The prosecution case is to the effect that instead of allotting certain lorries on the dates mentioned in the charge for military purpose, the petitioner entered falsely in the duty slips some bogus military work and hired out the lorries to private contractors for their own work after receiving illegal gratification in each case for so hiring out. It is said that the offence of criminal breach of trust arises from the fact that the lorries entrusted to him in his official capacity for the purpose of using them for military work alone were diverted for private use after he received consideration for such diversion. This was done as a result of a conspiracy between the petitioner and accused 2 in the lower Court. Such being the case, the two accused have been arraigned firstly for the offence of criminal conspiracy and secondly for the various instances of criminal breach of trust on specific dates.

4. The question that falls for decision is whether on the prosecution evidence as it stands (I do not wish to express any opinion about the credibility or otherwise of the evidence) the petitioner was acting or purporting to act in the discharge of his official duty. There are certain essential circumstances to be kept in view according to the learned advocate for the petitioner. They are as follows ; But for the fact that the petitioner was the Sub Divisional Officer and was empowered to direct the lorries entrusted to his charge for particular or specific military purposes, he would not have had the opportunity of doing what he is alleged to have done. Therefore Mr. Bamaseshan urges that there is an element of the official duty being done by the petitioner when he directed the driver to take the lorry to private contractors like P. w. 2 and others. Secondly, according to him drivers like p. w. 6 would not hare obeyed the direction given by the petitioner unless it were that the petitioner's act would amount to one purporting to be done in the discharge of his official duties. The evidence of P. Ws. 6 and 2 is clearly to the effect that they would not have acted as they did but for the belief instilled in them by the petitioner that he was acting in the discharge of his official duties.

5. On the strength of the above circumstances, Mr. Bamaseshan contends that the prosecution cannot stand in the absence of the previous sanction of the Governor-General in Council under Section 270, Government of India Act, or under Section 197, Criminal P. C. For this argument he relies upon the observations of the Federal Court in Dr. Horiram Singh v. The Crown : (1939)2MLJ23 . In particular, reliance is placed on the observations of Sulaiman J. at pp. 88, 36 and 87 of the report where the learned Judge was discussing the question as regards the applicability of Section 270, Government of India Act, to the facts of that case, as well as to the contention raised therein regarding the breach of trust. There are other passages in the judgment also to which reference is to be made especially to the judgment of Varadachariar J. at pp. 88 to 41. What the Federal Court decided in that case was that for an offence of breach of trust under Section 409, Penal Code, committed by a public servant, no sanction under Section 270, Government of India Act, or under Section 197, Criminal P. 0, is necessary. I need not refer to the various other cases where the question has been discussed at some length. Suffice it for the present case to rely upon recent decision of Rajamannar J. as he then was in Cri. E. c. No. 1091 of 1946 dated the 2nd April 1947. That was a case where the accused were charged with criminal conspiracy to commit various offences. The lower Court in that case held that for the initiating of proceedings under Sections 409 and 420, Penal Code, the consent of the Governor-General was necessary but that no such consent was necessary in respect of the charge under Section 120B, Penal Gode, The application to revise the order of the lower Court therefore was concerned only with the point regarding the necessity of the previous sanction of the Governor-General in Council for an offence under Section 120-E, Penal Code. The learned Judge after a very exhaustive discussion, if I may say so, came to the conclusion that the offence of conspiracy could not have been committed by the accused by acting or purporting to act in the discharge of his duty. The following observations of the learned Judge are pertinent to be considered for the present case:

Applying the test so laid down by the Federal Court, to my mind, it is clear that the offence of criminal conspiracy cannot fall within the .category of 'an act done or purporting to be done in the execution of his duty of a public servant,' As I have already said the gist of the offence consists in the agreement to commit certain illegal acts, No doubt the agreement was arrived at at a time when the petitioner held an official capacity. It may also be because he was holding a particular official position that he became a party to that agreement. But for the fact that he was a servant in charge of certain official work, this would not have been a party to the conspiracy. But it cannot be said that the agreement was an act done In his official capacity. It was not an act which the offender professed to do in pursuanoe of his official duty and meaning 'to convey to the mind of another the impression that he is so acting.' The act complained of, viz., that ho agreed to do, or cause to be done, certain illegal acts was not an official act just as it was pointed out in Hector Thomas Butley v. King-Emperor that the act of receiving illegal .gratification could not be an act done or purporting to be done in the execution of duty. In my opinion the contention on behalf of the petitioner based on S 270, Sub-section (1), Government of India Act, should be rejected.

These observations apply directly to the present case. When the petitioner agreed, according to the prosecution, with accused 2 to commit an illegal act, i, e. to hire out a vehicle entrusted to him for military use for private use, neither he nor accused 2 was doing anything which was in the discharge of their official duties. Both of them knew that it was against the official duty to hire out a military vehicle for a private purpose. Neither of them had any intention that the act which they were doing in pursuance of that agreement was in any way connected with their official duties. It may be, that but for the opportunity which presented to these persons on account of their official position, they would not have been in a position to enter into this illegal agreement. But that does not matter. The question has to be considered from this aspect, viz., whether the persons according to their knowledge were doing or not doing an official act. I have no doubt that when-if the prosecution story is true-the petitioner and the second accused agreed to hire out the lorries to private individuals, they were not to their knowledge, doing or purporting to do any official act. This disposes of the first charge regarding the offence under B. 120B, Penal Code.

6. Even as regards the three charges under Section 409, Penal Code, it cannot be said that the petitioner was acting or purporting to act in the discharge of any official duty. Sulaiman J, in Dr. Bori Bam Singh v. The Crown, 1989 2 M, L. J. 23 A.I.R.. 1939 P. C. 43: 1939 Cri, L. J. 468 observes at p, 36 of the report as follows:

The question whether a criminal breach of trust can be committed while purporting to act in execution of duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way had been responsible for loose language used in some of the cases cited before us. It is possible to conceive of a case where a criminal breach of trust may be committed in conspiracy with other servants and payment of money is dishonestly ordered ostensibly in execution on duty. The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case.

Further on, the learned Judge observes that:

When a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under B. 409, he is not doing an act, nor even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge of his duty.

The contingency envisaged by the learned Judge of the possibility of a case where a criminal breach of trust is committed in conspiracy by one public servant with other public servants and payment of money is dishonestly ordered ostensibly in execution of duty, floes not arise here, for it is not pretended that there is any payment of the public funds by the petitioner in pursuance of a conspiracy with any other public servant dishonestly. What the petitioner is charged with is, that by using a vehicle entrusted to him in his capacity as a public servant in derogation and utter violation of the entrustment, he thereby caused wrongful gain to himself. To such a state of things the observations of Sulaiman J. cannot apply. Varadachariar J. also at p. 41 of the report came to the same conclusion and observed that in so far as the charge under Section 409 was concerned, the acts in respect of which the appellant therein was prosecuted could not be regarded as acts done or purporting to be done in the discharge of his duty. The above decision of the Federal Court has been followed in a number of other oases to which it is unnecessary to make any detailed reference. All these cases have been considered by Bajamannar J. as he then was before coming to the conclusion that for an offence of criminal conspiracy under Section 120B it is not necessary to have the previous sanction of the Governor-General under Section 270, Govern. ment of India Act.

7. On principle, it is difficult to see how a person in doing an act in utter contravention and entire violation of his official duties can be deemed to do the same in discharge or execution of his official duty or purporting to do in the discharge or execution of his official duty. It is not pretended or even remotely suggested that a public servant like the petitioner can use the property entrusted to him for his own purposes. If he does any act in violation of the terms of the entrustment, it is a negation of the execution of public duty. I am therefore satisfied that the arguments advanced by the petitioner's counsel are unacceptable, and that the provisions of Section 270, Government of India Act or Section 197, Criminal P. 0., are not applicable to the facts of the present case. I wish it to be distinctly understood that I do not intend to express any opinion whatever about the merits of the Case and whether the prosecution evidence as it stands is sufficient or not to prove the offences with which the petitioner is charged. The petition is therefore dismissed.